Freedom of speech through the Internet in Mexico

Sergio Rangel
Intellectual Property Expert at Latin America IPR SME Helpdesk

 

Background

On June 2017, the Mexican Supreme Court of Justice (@SCJN) analyzed an Amparo suit filed by Alestra, S. de R.L. de C.V., a well known Mexican internet service provider (ISP), filed against the §199 Bis. Industrial Property Law preliminary injunction granted by the Mexican Institute of Industrial Property, also known as IMPI. The preliminary injunction rationale was the alleged infringements by storing and disseminating copyrighted music works, via a webpage.

In order to stop the allegedly infringing activities of said webpage, IMPI ordered Alestra and other ISPs to block the IP address in Mexican territory.

Alestra challenged IMPI’s preliminary injunction, in lower federal courts via an Amparo suit (Constitutional appeal) and lastly the case reached the highest Court in the country.

Supreme Court Justice Alberto Pérez-Dayán, member of its Second Chamber, drafted the opinion which resulted in two precedents. [1] [2] Per the opinion, blocking a webpage may violate the freedom of speech (recognized human right in the Mexican Constitution as well as in international treaties). It is mandatory for any Mexican government agency to take into account the freedom of speech as part of the limits to impose preliminary measures. Likewise, the injunctions shall be deemed in the law, grounded in a legitimate purpose, as well as necessary and proportional.

Because freedom of speech shall be a major concern to the Mexican State, any limitation cannot be unreasonably wide or generic. So a general block may be suitable only when exceptional circumstances raise, including inducement to terrorism, hate, racism, discrimination, genocide, violence, child pornography, etc.

Likewise, the threat of potential distribution of illegal copyrighted material is not per se a valid argument to entirely block a webpage since this blocking may include legal contents and protected speech, resulting in censorship.

Concerned of the application of the aforementioned precedents, the Mexican Association for the Protection of Intellectual Property (@AMPPI_AC) organized on September 1st, 2017, the conference: “#LibertadDeExpresión. Supreme Court criterion related to blocking of webpages and its interaction with the Intellectual Property”.

Justice Alberto Pérez-Dayán was the speaker on behalf of the Mexican Supreme Court of Justice.

In my opinión:

In the last months, Intellectual Property Rights owners and colleagues have been shocked due to the opinion of the Mexican Supreme Court of Justice, regarding the blocking of webpages. Apparently, the opinion blocks most of the online enforcement administrative actions. I disagree.

Seems clear that the Court is not restricting the authority of IMPI to grant preliminary injunctions against webpages, but establish rules.

Because the generic block is an extraordinary measure, it demands also extraordinary work to justify it.

Blocking webpages is constitutional when the authority properly rationale that the measure is adequate to prevent violations to intellectual property rights.

The blocking of a webpage must be reasonable and proportional. As Justice Pérez-Dayán said; a block may be applicable when the transit through the webpage is impossible without run into illegal contents.

Therefore, the matter is not to face a technical matter v. Human Rights, or to confront Freedom of Speech v. Copyrights. The matter is to prevent a government agency to misuse authority that may result in a disproportional   enforcement action or censorship… is to work hand-in-hand with IMPI to obtain rational injunctions that may result in a partial or even in total block of alleged-illegal contents.

Total block of webpages may be constitutional, but depends in how the block is carried out.

[1] BLOQUEO DE UNA PÁGINA ELECTRÓNICA (INTERNET). DICHA MEDIDA ÚNICAMENTE ESTÁ AUTORIZADA EN CASOS EXCEPCIONALES.

[2] LIBERTAD DE EXPRESIÓN EJERCIDA A TRAVÉS DE LA RED ELECTRÓNICA (INTERNET). LA PROTECCIÓN DE LOS DERECHOS DE AUTOR NO JUSTIFICA, EN SÍ Y POR SÍ MISMA, EL BLOQUEO DE UNA PÁGINA WEB.

From vlogger to freebooter – the difference a URL can make

Adriana Hernández Gallegos
Project Manager at Instituto Tecnológico de Estudios Superiores de Monterrey – ITESM

In November 2015, the number of videos that were published in Facebook pages exceeded the number of audiovisual works registered in Youtube, making Facebook the most popular platform for sharing videos. Facebook has worked hard in recent months to improve video-watching features and functions, and adjusting its algorithm to give preference to those videos that allow more interaction. Facebook has now become the giant of video-sharing in the internet.

The quantity of video posts uploaded on Facebook is impressive, but recently, many video creators are rightly complaining about the dubious origin of the videos shared on this site and the lack of copyright enforcement strategies by Facebook. And what does this have to do with you? Many of us have probably watched a video on Facebook that was uploaded without the authorization of the video creator. Actually, according to a recent report from Ogilvy and Tubular Labs, “out of the 1000 most popular Facebook videos of 2015, 725 were re-uploads by people who didn’t own the video.”

This action of downloading copyrighted content from a media hosting site and re-uploading it without the creator’s authorization is called “freebooting”, a term created by Brady Haran, during his “Hello Internet” podcast. Before the term existed the practice of re-uploading content without authorization was called “infringement”, but as Haran said, it was considered a very soft word for this practice.

Right now many people and companies continue to freeboot, impacting the economy of Youtube channels and creators. But how is this happening exactly? Remember those ads showing when you start watching a video on Youtube? Well this is part of the revenue sharing strategy from Youtube, in which the site shares a percentage of money given by companies for advertisement to the creator of the video where the ads are being shown. Believe it or not, there are people that make a living in Youtube, but they need a large number of views to make a real income from their videos. If someone posts and shares a freebooted video, the views from the freebooted video are not counted toward the number of views that are profitable to the creators. In other words, each time a freebooted video is watched, the creator of such video loses the opportunity to make a profit.

Youtube video bloggers (Vloggers) around the world have started the conversations about how this dishonest practice affects their industry, pointing in particular the lack of protection they have in some social networks and sites. Specifically, Facebook has become one of the most criticized sites by the vloggers, given that the massive number of Facebook users represents the vlogger’s main opportunity loss.

Hank Green, American entrepreneur, blogger, and vlogger, famous for his YouTube channel “Vlog Brothers”, published a blog post where he accused Facebook of cheating, lying, and downright stealing video content. Facebook responded to this accusation arguing that they are committed to help people and organizations protect their intellectual property rights, but the company has not made any substantial changes to their video management platform to prevent freebooting.

What can you do to prevent it?

If you want to promote an artist, a creator, or a vlogger; you need to provide the URL to the source material allowing users to directly access to the original media site. You can also help by reporting those videos that are being freebooted on social media and other sources. These solutions are free and take only a few clicks. It comes back to the average user to make the internet a better place.